CHAPTER 72. Subaqueous Lands

§ 7201 Purposes. Subaqueous lands within the boundaries of Delaware constitute an important resource of the State and require protection against uses or changes which may impair the public interest in the use of tidal or nontidal waters. The purposes of this chapter are to empower the Secretary to deal with or to dispose of interest in public subaqueous lands and to place reasonable limits on the use and development of private subaqueous lands, in order to protect the public interest by employing orderly procedures for granting interests in public subaqueous land and for issuing permits for uses of or changes in private subaqueous lands. To this end, this chapter empowers the Secretary to adopt rules and regulations to effectuate the purposes of the chapter, to apply to the courts for aid in enforcing this statute and the rules and regulations adopted pursuant hereto, and to convey interests in subaqueous lands belonging to the State. 65 Del. Laws, c. 508, §  2 ; 68 Del. Laws, c. 76, §  1 ; 72 Del. Laws, c. 474, §  3 ; § 7202 Definitions [For application of this section, see 85 Del. Laws, c. 534, § 10]. (a) “Department” means the Department of Natural Resources and Environmental Control. (b) “Linear utility infrastructure projects” means the construction, maintenance, repair, and removal of overhead or underground electric or telecommunication transmission lines, underground water, sewage, or stormwater conveyance lines, oil and natural gas pipelines, and associated facilities. (c) “Maintenance” means the actions required to return a channel, bridge, culvert, stormwater basin or water control structure to its full operational condition or to prevent a decline in its utility. These actions shall not change the purpose, scope or capacity of the channel, bridge, culvert, stormwater basin or water control structure. (d) “Ordinary high water mark” means, for nontidal waters, the line at which the presence and action of water are so continuous in all ordinary years so as to leave a distinct mark on a bank either by erosion or destruction of terrestrial (nonaquatic) vegetation, or that can be determined by other physical or biological means. (e) “Reconstruction” means the rebuilding of a channel, bridge, culvert, stormwater basin or water control structure that requires significant renovation or repair of their major structural features. This rebuilding shall be characterized by a replacement or major restorative effort similar to the degree required in the original design and construction of the channel, bridge, culvert, stormwater basin or water control structure. This rebuilding shall not change the purpose, scope or capacity of the channel, bridge, culvert, stormwater basin or water control structure. (f) “Retrofitting” means a change in design, construction or materials to an existing bridge, culvert, stormwater basin or water control structure in order to incorporate later improvements or to reflect new standards, criteria or needs not considered in the original design and construction. (g) “Secretary” means the Secretary of the Department of Natural Resources and Environmental Control. (h) “Small residential docking structure” means a structure no larger than 300 square feet, associated with a private residence, and that will be used for boat docking. (i) “Subaqueous lands” means submerged lands and tidelands. (j) “Submerged lands” means: (1) Lands lying below the line of mean low tide in the beds of all tidal waters within the boundaries of the State; (2) Lands lying below the plane of the ordinary high water mark of nontidal rivers, streams, lakes, ponds, bays and inlets within the boundaries of the State as established by law; and (3) Specific manmade lakes or ponds as designated by the Secretary. (k) “Tidelands” means lands lying between the line of mean high water and the line of mean low water. ( l ) (1) “Voluntary aquatic habitat restoration project” means any of the following: a. Activities that are voluntarily undertaken to restore, reestablish, rehabilitate, or enhance altered, degraded, or former aquatic habitats, and that result in a net increase in aquatic habitat functions and services. b. Activities to maintain or manage aquatic sites where activities described in paragraph ( l )(1)a. of this section have taken place. (2) A voluntary aquatic habitat restoration project may only include construction activities related solely to the habitat restoration action. (3) “Voluntary aquatic habitat restoration project” does not mean an activity undertaken to fulfill, currently or in the future, a federal, state, or local aquatic habitat permit mitigation requirement. 65 Del. Laws, c. 508, §  2 ; 68 Del. Laws, c. 76, §  2 ; 68 Del. Laws, c. 268, §  1 ; 72 Del. Laws, c. 474, §  1 ; 85 Del. Laws, c. 534, § 1 ; § 7203 Jurisdiction. (a) The Secretary shall have jurisdiction over any project involving ungranted subaqueous lands owned by this State, and shall have jurisdiction and authority to convey a fee simple of lesser interest or to grant an easement with respect to all projects involving these lands. All jurisdiction and authority remaining in this State as to subaqueous lands for which leases have been made or may be made is invested in the Secretary. (b) Owners of private subaqueous lands must obtain a permit from the Department before making any use of such lands which may contribute to the pollution of public waters, infringe upon the rights of the public, infringe upon the rights of other private owners or make connection with public subaqueous lands. (c) All activities in private nontidal subaqueous lands authorized under a nationwide permit issued by the United States Army Corps of Engineers and in effect in Delaware are exempt from this chapter; provided that a water quality certification has been received from the Department where necessary. 65 Del. Laws, c. 508, §  2 ; 68 Del. Laws, c. 76, §  3 ; 85 Del. Laws, c. 351, § 3 ; § 7204 Ejectment of trespassers. The Department may eject from any subaqueous lands owned by the State any person, firm or corporation trespassing upon any such lands, including the fixed mooring of floating structures, through appropriate action in the courts of this State. 65 Del. Laws, c. 508, §  2 ; § 7205 Permit, lease, or letter of approval required [For application of this section, see 85 Del. Laws, c. 534, § 10]. (a) No person shall deposit material upon or remove or extract materials from, or construct, modify, repair or reconstruct, or occupy any structure or facility upon submerged lands or tidelands without first having obtained a permit, lease or letter of approval from the Department. Applications for a permit, lease, or letter of approval must be submitted by an individual or entity approved by the Marine Contractors and Consultants Licensing Board. This submission requirement must commence 6 months after adoption of regulations concerning the Marine Contractors and Consultants Licensing Board. Such permit, lease or letter of approval, if granted, may include reasonable conditions required in the judgment of the Department to protect the interests of the public, including a condition that the activity be done by an individual or entity approved by the Marine Contractors and Consultants Licensing Board, once regulations concerning the Marine Contractors and Consultants Licensing Board are adopted, to perform the activity. The Department may adopt regulations setting fees for such permits. If it is determined that granting the permit, lease or approval will result in loss to the public of a substantial resource, the permittee may be required to take measures which will offset or mitigate the loss. This section shall not apply to any repairs or structural replacements which are above the mean low tide and which do not increase any dimensions or change the use of the structure. (b) The Secretary shall annually prepare a schedule of fees for permits and letters of approval issued pursuant to this section and submit the same as part of the Department’s annual operating budget proposal. (c) The Department may further promulgate general permits for the use of subaqueous lands, including any of the following: (1) A general permit that authorizes linear utility infrastructure projects. (2) A general permit that authorizes voluntary aquatic habitat restoration projects through an expedited process. (3) A general permit, to be known as the “small residential docking structure permit,” applicable to docking structures of no more than 300 square feet associated with a private residence that involve any occupancy of subaqueous lands. This “small residential docking structure permit” may only issue in the circumstances set forth in § 7207(f) of this title. (4) A general permit that authorizes minor road crossings in tidal subaqueous lands. (5) A general permit that authorizes minor bank stabilization in tidal subaqueous lands. (6) A general permit that authorizes the use of pilings in nontidal subaqueous lands in appropriate circumstances. The regulations must consider imposing restrictions where any of the following apply: a. The pilings are so closely spaced that sedimentation rates would be increased. b. The pilings themselves effectively would replace the bottom of a water body. c. The placement of pilings or related structures would result in the adverse alteration or elimination of aquatic or biologic functions. d. The pilings are intended to be used for structural support of a building such as a commercial or residential structure. (7) A general permit that authorizes the placement of navigational aids and signage or the construction of public infrastructure, such as fishing piers, as determined by the Department. (d) The Secretary may waive any provision of the regulations adopted pursuant to this chapter when warranted under the following circumstances: (1) Life-threatening emergencies. (2) Actions required for public safety for which sufficient time is not available to follow the regulations. (3) When imminent or catastrophic damage or loss of major infrastructure is likely if all provisions of the regulations are adhered to. (4) Where the authority of the Department under this chapter overlaps with another statute, including but not limited to shellfish grounds (Chapter 19 of this title), wetlands (Chapter 66 of this title) or beach preservation (Chapter 68 of this title) provided that the following criteria are met: a. If, in the opinion of the Secretary, equal environmental impact review and regulation of the activity would be provided by either statute; and b. Waiver of these regulations would not be contrary to the purposes of this chapter. (e) The Secretary may issue an after-the-fact permit, lease, letter of approval or waiver in those cases where an activity has occurred without first obtaining the required permit, lease, letter of approval or waiver. The determination of whether or not to issue an after-the-fact permit, lease, letter of approval or waiver shall be consistent with the purposes and provisions of this chapter. The applicant receiving the after-the-fact permit, lease, letter of approval, or waiver will be responsible for paying any associated processing fee and lease fee and the Secretary may assess a penalty in accordance with § 6005 of this title. 65 Del. Laws, c. 508, §  2 ; 68 Del. Laws, c. 86, §  9 ; 78 Del. Laws, c. 183, §  3 ; 79 Del. Laws, c. 147, §  3 ; 85 Del. Laws, c. 534, § 2 ; § 7206 Easements and transfers of title. (a) Pursuant to this chapter, the Secretary shall have exclusive jurisdiction and authority over all projects to convey a fee simple or lesser interest or to grant easements with respect to subaqueous lands belonging to the State. All jurisdiction and authority to convey a fee simple or lesser interest or to grant easements over subaqueous lands as to which grants have been made or may be made is vested in the Secretary. All leases for shellfish grounds shall be made pursuant to Chapter 19 of this title. (b) All members of the General Assembly shall be given 2 weeks’ notice of intent to convey any interest in subaqueous lands. 65 Del. Laws, c. 508, §  2 ; 68 Del. Laws, c. 76, §  4 ; § 7207 Application [For application of this section, see 85 Del. Laws, c. 534, § 10]. (a) Each applicant for a lease, permit or grant, pursuant to this chapter, shall file with the Secretary a request stating in detail the type of lease, permit or grant desired, showing the location of the area and containing specifications for any proposed construction. (b) The Secretary may require such additional information as will enable the Secretary to consider the application properly. The Secretary may require an environmental assessment to be provided if the Secretary determines that the proposed use or activity may have a substantial adverse effect upon the environment. (c) The Secretary may request of any state agency a report or recommendation concerning any application before the Department. (d) Upon receipt of an application in proper form, the Secretary shall post on the Department’s website and advertise in a daily newspaper of statewide circulation and in a newspaper of general circulation in the county in which the activity is proposed, notice that complies with the provisions of § 8032 of Title 29 and contains the following: (1) The fact that the application has been received; (2) A brief description of the nature of the application; and (3) A statement that any interested person may submit a written public hearing request expressing opposition to the application. (e) If the Secretary decides that a public hearing request is not meritorious, the Secretary shall then provide a written response so stating the Secretary’s reasons. (f) Where a permit application is submitted for a small residential docking structure permit, the Department must notify the applicant within 30 days as to whether their application as submitted is administratively complete and request any information required to complete the application. The applicant has 30 days to respond with the requested information. Where the Department has not issued or denied a permit within 120 days from receipt of a complete small residential docking structure permit application for such activities, the small residential docking structure permit listed as a general permit in § 7205(c)(3) of this title must be automatically issued in connection with the application. The foregoing timeline does not apply to applications involving the resolution of identified violations or applications involving a permit hearing. A small residential docking structure permit will only issue if the applicant has submitted a certification from a licensed contractor or consultant, certifying that the activity does not do any of the following: (1) Create a public safety or navigational hazard. (2) Disturb the riparian rights of others, such as subaqueous lands or wetlands adjacent to the activity. (3) Unduly restrict public use or access to subaqueous lands. 65 Del. Laws, c. 508, §  2 ; 70 Del. Laws, c. 186, §  1 ; 84 Del. Laws, c. 42, § 1 ; 84 Del. Laws, c. 103, § 4 ; 85 Del. Laws, c. 534, § 3 ; § 7208 Hearing [For application of this section, see 85 Del. Laws, c. 534, § 10]. (a) A public hearing must be held if any of the following apply: (1) If a grant or lease for a period of time in excess of 20 years is sought. (2) If the Secretary determines that a public hearing is in the public interest. (3) If a written meritorious public hearing request expressing opposition to the application is received within 20 days of the advertisement of the public notice for the application. A public hearing request must be deemed meritorious if it exhibits a familiarity with the application, a reasoned statement of the action’s probable impact, and a demonstrated and substantial nexus between the requestor and this probable impact. (b) Notice of the public hearing shall be sent to the applicant, to immediately adjacent property owners and to any interested person who requests it, and such notice shall be published in the same manner as the application. (c) The Secretary shall make a written statement of reasons to be placed with the application if a public hearing is not held. 65 Del. Laws, c. 508, §  2 ; 69 Del. Laws, c. 50, §  1 ; 72 Del. Laws, c. 474, §  2 ; 84 Del. Laws, c. 103, § 4 ; 85 Del. Laws, c. 534, § 4 ; § 7209 Published notice. (a) The published notice shall contain a general description of the location of the property and a statement of the nature of the lease, permit or grant sought to be acquired. (b) If the advertisement is also used to provide notice of a public hearing, it shall also give the time, date and place of the hearing, which shall occur not less than 20 days following the publication of the advertisement. 65 Del. Laws, c. 508, §  2 ; § 7210 Appeals to Environmental Appeals Board [For application of this section, see 85 Del. Laws, c. 534, § 10]. Any person whose interest is substantially affected by any action of the Secretary or of the Department taken pursuant to this chapter, may appeal to the Environmental Appeals Board as established by § 6007 of this title within 20 days after the announcement of the decision. Such appeal shall be governed by § § 6008 and 6009 of this title. There shall be no appeal of a decision by the Secretary to deny a permit on any matter involving state-owned subaqueous lands, except an appeal may lie on the sole ground that the decision was discriminatory in that the applicant, whose circumstances are like and similar to those of other applicants, was not afforded like and similar treatment. The grant of a permit on subaqueous lands may be appealed by any person whose interest is substantially affected. 65 Del. Laws, c. 508, §  2 ; 68 Del. Laws, c. 76, §  5 ; 85 Del. Laws, c. 534, § 5 ; § 7211 Costs, deposits and fees. (a) All costs for the proceedings under this chapter shall be assessed against the applicant. (b) The Secretary may require a deposit at the time of the application or at any other time to insure the payment of the costs. (c) All costs and deposits and all fees collected under this chapter are hereby appropriated to the Department to carry out the purposes of this chapter. 65 Del. Laws, c. 508, §  2 ; § 7212 Rules; delegation [For application of this section, see 85 Del. Laws, c. 534, § 10]. The Secretary may after public hearing, adopt, amend, modify or repeal rules or regulations to effectuate the policy and purposes of this chapter. The Secretary may delegate his or her powers or duties under this chapter, except the power to convey or to lease or grant easements in subaqueous lands in excess of 2,500 square feet. 65 Del. Laws, c. 508, §  2 ; 70 Del. Laws, c. 186, §  1 ; 85 Del. Laws, c. 534, § 6 ; § 7213 Existing rights [For application of this section, see 85 Del. Laws, c. 534, § 10]. This chapter shall not change the law of this State relating to existing property, riparian or other rights of this State or other persons in submerged, tidelands or filled lands. This section does not preclude the Secretary from regulating public and private subaqueous lands or from charging a regulatory fee pursuant to § 7205 of this title. 65 Del. Laws, c. 508, §  2 ; 85 Del. Laws, c. 534, § 7 ; § 7214 Violations; enforcement; civil and criminal penalties. (a) Whoever violates this chapter or any rule or regulation duly promulgated, or any condition of a permit issued pursuant to § 7205 of this title, or any order of the Secretary, shall be subject to enforcement in accordance with § 6005 or § 6013, or both, of this title. (b)-(d) [Repealed.] 65 Del. Laws, c. 508, §  2 ; 79 Del. Laws, c. 147, §  3 ; 80 Del. Laws, c. 391, § 2 ; § 7215 Cease and desist order. The Secretary shall have the power to issue an order to any person violating any rule or regulation or permit condition or lease condition or provision of this chapter to cease and desist from such violation. Any cease and desist order issued pursuant to this section shall expire: (1) After 30 days of its issuance; (2) Upon withdrawal of said order by the Secretary; or (3) When the order is superseded by an injunction, whichever occurs first. 65 Del. Laws, c. 508, §  2 ; § 7216 Interference with Department personnel. No person shall obstruct, hinder, delay or interfere with, by force or otherwise, the performance by Department personnel of any duty under this chapter, or any rule or regulation or order or permit or decision, promulgated or issued thereunder. 65 Del. Laws, c. 508, §  2 ; § 7217 Special exemptions [For application of this section, see 85 Del. Laws, c. 534, § 10]. (a) This chapter shall not apply to any work performed by any state, county, municipal government or conservation district, or their designated contractor, when that work occurs in nontidal submerged lands in the Delaware Atlantic Coastal Plain Province with a contributing drainage area of less than 800 acres. (b) This chapter shall not apply to maintenance, reconstruction or retrofitting work performed by or with the assistance of any state, county, municipal government or conservation district when that work occurs in any nontidal submerged lands. Such maintenance, reconstruction or retrofitting work shall comply with the standards and specifications associated with best management practices in the Delaware Erosion and Sediment Control Handbook, 1989 or as revised. (c) This chapter shall not apply to any work in agricultural drainage ditches created from nonsubaqueous lands that are designed according to reasonable drainage standards, when performed by or with the assistance of any state, county, municipal government or conservation district. (d) This chapter shall not apply to ponds constructed in uplands when those ponds are constructed by or with the assistance of any state, county, municipal government or conservation district. (e) This chapter shall not apply to stormwater ponds that are permitted in accordance with Chapter 40 of this title or to farm ponds or other ponds whose only source of hydrology is groundwater. (f) The lease provisions of this chapter shall not apply to any wastewater conveyance or treatment works system owned or operated by the State or any county or municipal government with the State. (g) This chapter shall not apply to subaqueous archaeological resources and unmarked human burials and human skeletal remains, which are regulated by the Department of State, Division of Historical and Cultural Affairs pursuant to Chapters 53 and 54 of this title. (h) All activities in private nontidal subaqueous lands authorized under a nationwide permit issued by the United States Army Corps of Engineers and in effect in Delaware are exempt from this chapter; provided that a water quality certification has been received from the Department where necessary. 68 Del. Laws, c. 268, §  2 ; 72 Del. Laws, c. 474, §  4 ; 75 Del. Laws, c. 153, §  12 ; 85 Del. Laws, c. 534, § 8 ; § 7218 Creation of the Marine Contractors and Consultants Licensing Board [For application of this section, see 85 Del. Laws, c. 534, § 10]. (a) There is hereby established the Marine Contractors and Consultants Licensing Board. (b) The Marine Contractors and Consultants Licensing Board must assist the Department in the licensing and regulation of individuals and entities that deposit material upon or remove or extract materials from, or construct, modify, repair, or reconstruct any structure or facility upon submerged lands or tidelands. (c) The Department has the exclusive licensing authority under this chapter. In administering the licensing program it must seek the views of the Marine Contractors and Consultants Licensing Board. (d) The Marine Contractors and Consultants Licensing Board must consist of 7 members designated at the discretion of the Secretary. (e) The Department must adopt regulations concerning the licensing program and the operation of the Marine Contractors and Consultants Licensing Board to effectuate the policy and purposes of this chapter. 85 Del. Laws, c. 534, § 9 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } }